IN THE SUPREME COURT OF SAMOA
Police v Ah Ta [2014] WSSC 202

Case name: 	Police v Ah Ta	
		
Citation: 	[2014] WSSC 202	
		
Decision date: 	26 November 2014	
		
Parties: 	POLICE (Prosecution) v MAOTA AH TA female of Lealaalii Faleasiu and Melbourne, Australia. (Defendant)	
		
Hearing date(s): 	25 November 2014	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	For the reasons that I have outlined Maota the application that your counsel has made is dismissed.  You will be remanded on the same bail conditions to the next mention date which is next Monday the 01st of December to set a trial date.  The parties should now focus their energies on preparing for trial so that there be no further delay in bringing this matter to a conclusion one way or another.  	
		
Representation: 	R Titi and B  Faafiti-LoTam for prosecution
T Leavai for defendant	
		
Catchwords: 	Murder – cold cases – strangled newly born child - balance of probabilities – undue delay 	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Puni v Attorney General [2013] WSCA 12
R v Morin [1992] 1 SCR 771
Police v Tulaga [2006] WSSC 51

Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	MAOTA AH TA female of Lealaalii Faleasiu and Melbourne, Australia.
Defendant

Counsel:	R Titi and B  Faafiti-LoTam for prosecution
T Leavai for defendant

Hearing:	25 November 2014

Decision:	26 November 2014

ORAL JUDGMENT OF NELSON J
(Application to quash murder charge)

1.	On the 14th of May 2013 the defendant was charged with murder.  It relates to a crime alleged to have been committed in March 1970 at Faleasiu.  The allegation is that she strangled the newly born child of her younger sister Suemalo Tuua.  A boy alleged to be the son of the defendants husband and her sister.    
2.	The defendant has pleaded not guilty to the charge and filed an application to stay, quash or dismiss the proceedings on the ground that there has been undue delay in bringing this prosecution.  There is no dispute that some 43 years have elapsed since the incident was alleged to have occurred.  
3.	The defendant claims prejudice due to the effect that the passage of time has had on her memory and that of potential witnesses.  She also claims prejudice because a key witness for her defence namely her brother Fatu Nofoi Tuua passed away in the year 2000.  He is thus unable to testify about his burying Suemalo’s baby after Suemalo had miscarried.  She also claims prejudice because two other witnesses namely Nofoi’s wife Maseiga and her own husband Matavai Mate Ah Ta now reside out of the jurisdiction.  For various reasons they are said to be unable to travel to testify in her defence.  They both being eye witnesses to the events that occurred at Faleasiu on the relevant date in March 1970.  
4.	The defendant also claims the prosecution is actuated by malice on the part of the complainant who is her other younger sister Senara Peī.  As revenge against the defendant for losing her house in a Land and Titles Court decision delivered on 01 May 2013.  That case involved both of them as defendant parties.  She argues that for these reasons her fair trial rights would be breached if the murder charge were allowed to proceed.  
5.	Pursuant to article 9(1) of the Samoan Constitution everyone is guaranteed the right “to a fair and public hearing within a reasonable time.”  There are numerous authorities both domestic and foreign dealing with the right to be tried within a reasonable time.  It is this right that the defendant claims would be infringed by this prosecution.  
6.	I am aware the defendant is normally a resident of Melbourne, Australia.   And is probably here specifically for this matter.  The court has therefore decided to deliver an oral ruling on her application so that there will be no further delay in processing these proceedings.  I accordingly do not propose to engage in a comprehensive review of the relevant case law.  These have helpfully been referred to by both counsels in their submissions and I am grateful to counsels for attaching copies of the relevant authorities.  
7.	The starting point for any discussion of the right to be tried within a reasonable time is the Court of Appeal decision in Puni v Attorney General [2013] WSCA 12. Where at paragraph 10 the court said:
“In interpreting and applying Articles 9 and 4, while in the end the issue concerns the constitutional law of Samoa, regard may properly be had to the English common law which by Article 111 forms part of the law of Samoa, insofar as not excluded by any other law (which includes the Constitution). It is permissible also to consider whether concepts developed in such sister jurisdictions as New Zealand, Australia and Canada are appropriate for Samoan conditions.”
8.	The authorities establish that the general approach in applications such as the present one is that laid down by the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 in particular in the judgment of Mr Justice Sopinka of that court where he said: 
“The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula.  But rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay…….it is axiomatic that some delay is inevitable. The question is at what point does the delay become unreasonable?”  
9.	The learned judge went on to set out a number of factors relevant to analyzing whether the delay in any particular case has become unreasonable.  
“It is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:
(1)	the length of the delay;
(2)	waiver of time periods;
(3)	the reasons for the delay including
(a)	the inherent time requirements of the case;
(b)	the actions of the accused;
(c)	the actions of the Crown;
(d)	limits on institutional resources;
(e)	other reasons for the delay; and
(4)	the prejudice to the accused.”  
10.	The case law also lays down that the onus of proof in applications such as the present one is on the defendant who brings it to prove on a balance of probabilities that the delay complained about is unreasonable.  See the judgment of Justice Sopinka and also Chief Justice Sapolu in Police v Tulaga [2006] WSSC 51.  
11.	Applying the Sopinka tests to the present case I find as follows: firstly as to the length of the delay.  Clearly 43 years is a long time and is a lengthy delay.  But as noted by the Court of Appeal in Puni at paragraph 11 “the passing of time without particular consequences adverse to the defence has been held not to infringe the defendants right to a fair trial.”  This means the key to succeeding in applications of this nature is that the passage of time must be shown to have had clear and identifiable consequences adverse to the defendant.  This mirrors the Canadian experience which is that successful challenges in the area of violations of the right to be tried within a reasonable time are now rare and highly unlikely to succeed unless the accused demonstrates serious prejudice.  Mere delay even a delay of forty odd years is not by itself sufficient.  See further the judgment of the Honourable Chief Justice in Police v Tulaga.  
12.	As to the second category waiver of time periods, that has no application to the present situation as there has been no waiver of any relevant time period.  As to the third requirement the reasons for the delay including the inherent time requirements of the case, again that has no application to the present case.  It is clear that in this matter the prosecution only began in May 2013 and it is likely that if it is allowed to proceed, trial will occur within a reasonable time given the circumstances of this case.  
13.	As to the actions of the defendant, again that has no application to the present case as the defendant was only first brought before the court in May 2013.  This defendant has notwithstanding her residence overseas according to the file before me diligently appeared at all callings.  It certainly cannot be said she had any contribution to the late making of the complaint by her younger sister.  
14.	As to the actions of the Crown, again this has limited application to the present case because the evidence is that the complaint by the younger sister was only made to the Police in May 2013.  As to the limits on institutional resources, again that has no application to the present case.  
15.	Perhaps what is of application is the penultimate of the Sopinka categories namely other reasons for the delay.  This matter was only actioned by the Police in May 2013 after a complaint was made by the complainant sister.  The defendant maintains the complaint is malicious and was motivated by the complainants loss in a Land and Titles Court case involving their family in May 2013.  
16.	The complainants answer to that is contained in paragraphs 11-16 of her affidavit dated 14 August 2014 filed in this matter.  Which essentially states that her sister Suemalo whose baby is said to be the victim became ill and before she died in 2013, she told the complainant she wanted to disclose this incident before she died.  The complainant agreed to support the younger sisters testimony.  She says in her affidavit there was no collusion between them to bring this matter to court but only “to tell the truth because I feel that my children and grandchildren may suffer in the future if I do not deal with this before I die.  Because this may be seen as a sin before God.”  
17.	As it appears Senara also resides in Melbourne, Australia she says further in her affidavit that “I had to attend Samoa in May 2013 for a family funeral.  It was then that I had the opportunity to go with Suemalo to the Samoa Police and provide my statement regarding everything that I saw Maota do, namely strangle a live baby and bury it.”  She also at the end of the affidavit denies in paragraph 17 that she is motivated by revenge or anger at the defendant over the Lands and Title Court decision of 1 May 2013. She says “that the land in which my house is built is a separate matter which was brought by Fesolai Makerita Paugata against my family including my brother Tuua Matavai, Maota Ah Ta, So Tuua, Peii Velovaa and myself.”  She says the matter is currently being appealed and her house still stands on the land.  
18.	The last of the Sopinka factors is prejudice to the accused.  This has been given significant weight in defence counsels argument in support of the defendants application.  Firstly the memory issue due to the lapse of time since this matter allegedly occurred.  Secondly the prejudice occasioned by the death of a key witness namely her brother.  And thirdly the prejudice caused by the fact that two other key witnesses now live overseas.  
19.	As to the memory issue and the defendants claim that her memory is impaired I heard her evidence yesterday when she was called by her counsel to testify in this proceeding.  I saw no evidence her memory was at all impaired.  If anything it was remarkably sharp.  She was able to recall even small details such as who was at church on the Sunday in question and who was not.  I do not accept that her memory of the relevant events that occurred over 40 years ago has been tarnished by the passing of the years.   
20.	As to possible failings of memory in respect of other potential witnesses I draw counsels attention to the following passage quoted in the Honourable Chief Justices judgment in Tulaga:  
“If the court is not satisfied that the memory of the witnesses was affected by the delay, if there was only a concern about that possibility, no determination of prejudice whether inferred or based on the evidence can be made.”(emphasis is mine).
It seems clear therefore that a concern about the potential effect of the delay on the memories of witnesses is not by itself sufficient for the purposes of succeeding in an application of this nature.  I find there is no basis to the defendants memory argument.  
21.	As to the death of a key witness namely the defendants brother who is said by her to have buried the miscarried baby:  there is no doubt that the unavailability of this evidence will have some effect on the defendants defence.  But that effect is offset to a great extent by the fact that his wife is alive and resident in neighbouring American Samoa.  She too is said to have been present on the day in question at Faleasiu in March 1970.  She too would be able to give evidence as to the actions or otherwise of her husband and vis-a-viz the alleged baby.  
22.	I have been advised that family responsibilities in particular her having to care for a handicapped grand-child means she is unable to travel to Apia to attend a hearing.  But as pointed out to counsel these difficulties can be overcome.  It cannot be that there is no one else in the family or in American Samoa capable of caring for the handicapped child while this witness attends court in Samoa for a half day or so to testify.  I have also been advised she is able to travel as she has travelled to the United States with the grandchild for medical treatment.  
23.	But even if there were real issues making her unable to attend, alternative arrangements can be made in respect of her evidence.  Her evidence can for example be taken by video link as has been done in this court in respect of overseas witnesses in the past.  Similar observations would apply to the defendants husband who resides in Melbourne, Australia.  There is no evidence before the court by way of a medical report or otherwise that he is physically unable to travel to Samoa to testify.  And bear in mind he would be testifying at his wifes trial for murder.  Neither is there any independent evidence that he would be mentally incapable of giving evidence at a trial.  
24.	With respect this seems to me to be more a situation of unwilling rather than unable witnesses.  And prejudice cannot be claimed by virtue of reluctant witnesses.  Because had the matter proceeded to trial 43 years ago the defence would still have been faced with the same challenge.  
25.	I find there is no prejudice in that regard.   The two witnesses who are resident overseas seem well able to attend.  And if for some cogent reason they are unable to do so their evidence can be taken by way of video link or in some other appropriate fashion acceptable to counsels.  
26.	As stated in the leading case of R v Morin referred to earlier:
“Where the accused suffers little or no prejudice, it is clear that the consistently important interest of bringing those charged with criminal offences to trial outweighs the accuseds and societys interest in obtaining a stay of proceedings on a count of delay, because the consequences of the delay are not great.”  
27.	This is not a case where the delay can be laid at the doorstep of a faulty system or police inactivity.  The Police received the complaint in May 2013.  They investigated it as they are duty bound to do.  They found that there was a case to be tried and laid a criminal charge expeditiously.  There can be no criticism of their conduct.  
28.	The 43 year delay cannot be attributed to a faulty system.  The history of this file shows no undue or unnecessary delay has been occasioned in processing the charge laid against the defendant.  Her matter has received due and prompt attention.  Any delay between the filing of the charge and this point in time has been due to the fact that the defendant resides overseas and on one occasion because she was too ill to travel to attend court.  
29.	The delay here is due to the fact that a complaint was not made until 43 years after the alleged event.  It is not uncommon for that to occur.  I am sure we have all seen and heard of a number of recent very well publicized examples of this, e.g the Rolf Harris trial where complaints of sexual assault were not made until 30/40 years after the event; those complaints currently facing the legendary Bill Cosby which involve allegations dating back to the 1970’s.  There are many murder cases often referred as “cold cases” which are not brought to trial expeditiously simply because the evidence was not discovered until many years after the alleged event occurred.  This is one such case.  
30.	That is not to say defendant that the court believes or in any way accepts the truth of the allegation against you.  Far from it.  That is a matter to be determined at a trial before a panel of assessors duly convened to decide whether the allegations are proven beyond reasonable doubt or not.  What the court can guarantee you as with all defendants is that you will receive a fair trial, for fair treatment will always be safeguarded and remains a priority of the court.  On balance I find despite the fact that more than 40 years has passed that the defendant has not been prejudiced by the delay.  And allowing this prosecution to proceed does not violate her constitutional right to a speedy trial.  
31.	As to the suggestion that the complaint and therefore this prosecution is actuated by the complainants malice, for present purposes that is irrelevant.  I acknowledge that is possibly more an emotional rather than a legal argument.  And is an issue of credibility to be explored by counsel if she thinks fit at the eventual trial of this matter.  When all the issues will be explored and dealt with before a duly convened panel of assessors.  
32.	For the reasons that I have outlined Maota the application that your counsel has made is dismissed.  You will be remanded on the same bail conditions to the next mention date which is next Monday the 01st of December to set a trial date.  The parties should now focus their energies on preparing for trial so that there be no further delay in bringing this matter to a conclusion one way or another.  

JUSTICE NELSON